Wednesday, January 06, 2016

Alabama Chief Justice Roy Moore is once again seeking to defy federal courts on the issue of same-sex marriage. (See prior posting.) In March 2015, the Alabama Supreme Court in the Alabama Policy Institute ("API") case ordered probate judges in the state to discontinue issuing marriage licenses to same-sex couples despite federal district court orders already holding Alabama's ban on same-sex marriage unconstitutional. (See prior posting.) Of course, in June 2015, the U.S. Supreme Court handed down the Obergefell decision, finding bans on same-sex marriage in Ohio, Tennessee, Michigan and Kentucky unconstitutional. Three days later, the Alabama Supreme Court invited parties in the API case to file briefs addressing the effect of the Obergefell decision on the Alabama order in API. Subsequently two probate court judges petitioned the Alabama Supreme Court for orders protecting their refusals to issue same-sex marriage licenses. All of these matters remain pending before the Alabama Supreme Court.

Today, Alabama Supreme Court Chief Justice Roy Moore issued an Administrative Order (full text) addressing what he described as the "confusion and uncertainty" that exists among Alabama probate judges. He says that "an elementary principle of federal jurisdiction [is that] a judgment only binds the parties to the case before the court," suggesting that technically Obergefell is not binding on Alabama judges. He went on:

As Administrative Head of the Unified Judicial System of Alabama, authorized and empowered pursuant to Section 12-2-30(b)(7), Ala. Code 1975, to "take affirmative and appropriate action to correct or alleviate any condition or situation adversely affecting the administration of justice within the state," and under Section 12-2-30(b)(8), Ala. Code 1975, to "take any such other, further or additional action as may be necessary for the orderly administration of justice within the state, whether or not enumerated in this section or elsewhere"...

IT IS ORDERED AND DIRECTED THAT: Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect.